Justice for the Yazidis in the Ishaq Case by the Stockholm District Court – Part I

[Mark Klamberg is professor of international law at Stockholm University and currently resides in Washington, DC, where he is affiliated with American University WCL and the Atlantic Council’s Strategic Litigation Project.

Alexandra Lily Kather provides expert legal advice to a range of accountability actors, including the Strategic Litigation Project at the Atlantic Council, on violations of international criminal law with a focus on gender-based and slavery crimes.]

Background

This two-part post will explain and analyse the judgment of Stockholm district court of 11 February 2025 in which Lina Ishaq was convicted for having committed genocide, crimes against humanity and gross war crime against women and children belonging to the Yazidi community in Syria. It will expand on the summary in English issued by the district court. This was actually the second trial for Ishaq; the same court had in a judgment of 4 March 2022 convicted her for complicity in the war crime of recruiting child soldiers in Raqqa, Syria. Thus, at the time of her second trial she was already serving a six-year prison term. This post is only about the second trial. 

Takeaways from the Judgment

For the general public and the affected communities the two key points of interests in this case was arguably that: 1) it was the first judgment in Sweden in which crimes by IS/ Daesh in the Syria/Iraq were legally characterized  as genocide, thus recognizing the malignant nature and the plights of the victims. Moreover, the court finds that the genocide was partly physical as well as cultural and social; and 2) it was the first time someone was convicted for crimes against humanity by a Swedish court. For international criminal scholars there are additional aspects worth studying which will be in focus of this post, including: 3) which acts may amount to genocide; 4) which rules on mode of liabilities should a domestic court apply – the general rules of that domestic jurisdiction or the rules as applied by international criminal courts; 5) how and to what extent does the judgment contribute to international criminal law jurisprudence regarding the crime of enslavement?

The Applicable Law

Sweden has a dualistic approach to international law, the latter has to be implemented in domestic law, normally via the mechanisms of transformation or incorporation. In this context it is adequate to talk about transformation since the relevant rules of international law are listed in a specific law. The indictment and judgment is based on the Act on criminal responsibility for genocide, crimes against humanity and war crimes (2014:406) – hereafter the “International Crimes Act” which entered into force 1 July 2014. To summarize the legislation: section 1 defines genocide, section 2 crimes against humanity, section 3-11 war crimes, section 11a crime of aggression (not in the English translation, see the law in Swedish here), section 12 provides definitions relating to children, sections 13-15 on superior responsibility and section 16 on attempts. Section 17 of the International Crimes Act creates a special jurisdictional rule for the crime of aggression. For all other international crimes, the general rules on jurisdiction apply as set up in chapter 2 of the Criminal Code (it was completely amended 1 January 2022 with no official translation to English).

The adoption of new legislation in 2014 is crucial, since the previous legislation only included war crimes (labelled as “crime against international law”) and genocide, but not crimes against humanity. For reference, war crimes were defined as follows in the old legislation.

A person guilty of a serious violation of a treaty or agreement with a foreign power or an infraction of a generally recognised principle or tenet relating to international humanitarian law concerning armed conflicts shall be sentenced for crime against international law to imprisonment for at most four years. Serious violations shall be understood to include, inter alia:

1.use of any weapon prohibited by international law,

2. […]

7. […]

If the crime is gross, imprisonment for at most ten years, or for life shall be imposed.

The second paragraph lists seven acts which constitute a non-exhaustive list of criminalized acts. The words inter alia (bland andra) in the first paragraph and the reference to treaties and customary international law relating to international humanitarian law (IHL) makes the provision open-ended. Following the general approach of Swedish criminal law the provision distinguishes between the crime of the normal degree (with maximum imprisonment of 4 years) and gross crime (which allows for life imprisonment). The word “gross” in this context is thus a generic term of Swedish criminal law and should not be understood or made equivalent to the terms “grave” or “serious” in IHL. 

To summarize the main difference, the previous war crimes provision was dynamic and open-ended in the sense that it explicitly defined its scope by reference to treaties and customary international law relating to IHL. This feature was well illustrated by the Arklöv case at Stockholm district court, relating to crimes committed in Bosnia 1995. In contrast, the International Crimes Act is static and has a closed list of criminalized acts without having its scope defined by any reference to treaties or customary international law. The new legislation arguably increases predictability on the scope of the criminalized behaviour in the interests of legality while it runs the risk of “undercriminalization” if the legislator (ie. the parliament) fails to amend the law following developments in treaty law and customary international law. For example, the involvement of Ishaq in acts of the slave trade against Yazidi women and children could have been legally characterized as such (see Part II).

The Underlying Criminal Acts

Ishaq was charged for crimes committed between August 2014 and the first quarter of 2015, thus all of the acts were covered by the new legislation. Stockholm district court convicted her for  genocide (Section 1(1)(2) and (5) International Crimes Act), crimes against humanity (Section 2 (1) paragraphs 2, 5, 7 and 8 International Crimes Act) and gross war crimes (Section 3, first paragraph, sections 2 and 7 and section 11 International Crimes Act) based on various abuse directed against Yazidi women and children, including the following acts identified in the elaborate press statement of the district court.

– Forced the injured parties to become practicing Muslims by forcing them to participate in Islamic instruction, forced them to recite the Quran and to pray four or five times each day,

– Forced them to wear clothes carrying religious significance, such as the hijab or niqab,

– Forbade them from speaking Kurmanji (Northern Kurdish) and from practicing their religion and culture,

– Assaulted and molested some of the injured parties and referred to all of them using demeaning invectives such as “infidels” or “slaves”,

– Showed them propaganda films in which Yazidis are executed by male IS-members and in connection with this said that IS will kill all the infidels,

– Severely restricted their freedom of movement within the home,

– Forced them to perform domestic chores in a slave-like way,

– Restricted the food and necessities provided to the injured parties,

– Participated in photographing the injured parties in preparation for onward transfer,

– Assisted in bringing about the onward transfer of some of the injured parties to other IS-members.

Thus, the defendant had committed multiple harmful acts against the Yazidi women and children, but no killings.

Physical, Cultural and Social Genocide

The district court found the following. Yazidis are a religious group protected by the Genocide Convention (pp. 77-78 of the judgment). Ishaq had an active role in the context of the conflict acting on behalf of IS / Daesh in the enslavement of Yazidi women and by forcefully converting people from the group. She made statements and took actions which showed her ideological commitment and allegiance to bring about forceful conversions making the Yazidis leave their group and become members of IS / Daesh (pp. 209-210). Most notably the district court states that Ishaq shared the intent of IS / Daesh to destroy, in whole or in part, the Yazidi group physically as well as from a social and cultural perspective (pp. 210, 223-224). The court writes the following.

The Yazidi religious and cultural sites and monuments in the Sinjar region were damaged and destroyed in the attack, which according to international practice indicates that IS aimed to destroy the protected religious group as such. (p. 78)

This sentence is somewhat ambiguous, the district court is not necessarily characterizing the destruction of this religious and cultural property as genocidal acts in themselves, rather it can be understood as evidence of genocidal intent to bring about physical destruction. However, in the judgment the district court continues with the following.

In conclusion the district court finds that IS with its attack on the Sinjar District, the killing, enslavement and widespread atrocities committed in different forms against the Yazidis, were done with the general purpose to destroy the Yazidi group, partly physically, but also from a social and cultural perspective. The intent to destroy as defined in section 1 of the International Crimes Act is thus fulfilled. … the purpose of the committed acts have been to in whole or in part destroy the Yazidi group by physically wiping it out as well as that the group would cease to exist from a social and cultural perspective. (pp. 80 and 223)

This is notable since nothing in the domestic legal statute on genocide talks about “social” and “cultural” genocide. Raphaël Lemkin, who coined the word genocide, would probably approve since this was one of the modes of genocide as described in his book “Axis Rule in Occupied Europe” from 1944 and advocated during the negotiations on the Genocide convention. During the negotiations the term  “cultural genocide” was included in the draft of UN Secretary General but intentionally removed when it reached the sixth committee of the General Assembly and there is no explicit reference in the Genocide convention to the term (see Schabas, pp. 209-214). For a court to characterize genocidal acts in social and cultural terms is certainly interesting as it deviates from the mainstream legal understanding of genocide. Unfortunately, the district judgment does not give any sources on how it arrived at this understanding, neither to case law or scholarship. 

Although it is not referenced in the judgment, a potential inspiration for the district court is the preparatory works to the 2014 legislation (pp. 81, 86, 89, 90 and 232) which entertains the destruction of protected groups from a social and cultural perspective. The preparatory works provide the following while referencing ICTY Case Blagojevic and Jokic (para 666.) 

The term destroyed means that one protected group or part thereof ceases to exist. … However, it is not necessary that the protected ethnic group be physically wiped out. The fact that a population group ceases to exist, e.g. from a social or cultural perspective is also covered by the term (p. 232).

The prosecution did in its opening statement explicitly reference these parts of the preparatory works. Thus, it is reasonable to assume that the district court relied on these sections of the preparatory works during their deliberations without explicitly referencing them in the judgment. It bears pointing out that Sweden acknowledges preparatory works as a source of law. Government agencies, courts, practising lawyers and scholars rely heavily on preparatory works in a distinct and standardized technique with the purpose of discerning the will of the legislator. It is regularly used as a gap-filling function when interpreting and applying statutory law (Carlson, pp. 45-47). However, pursuant to the principle of legality one should be cautious to expand the scope of a criminal statute beyond its wording by mere reference to preparatory works. The Blagojevic and Jokic case at the ICTY is together with Jorgic v. Germany case at the ECtHR somewhat of outliers when it comes to international case law in this regard. In Krstic (paras. 576-580) the ICTY rejected the concept of cultural genocide although “where there is physical or biological destruction … simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.” We find a similar ruling by the ICJ in the Bosnia v. Serbia Genocide case (paras. 194 and 344). There is certainly discussion in scholarship on this matter, where legal scholars tend to adopt a more narrow understanding (for example Schabas) while social science scholars have a tendency to have a more broad outlook (for example, see Bachman although he appears to distinguish between the legal definition and the concept used in scholarly genocide studies)

Among the legal writers, Behrens observes that a view that includes cultural destruction cannot be derived from the codification history and notes that the limitation to physical or biological destruction ‘ensures that the threshold criterion which is of defining importance for the crime of genocide is preserved’. He suggest, however, that the consideration of the physis (ie, the nature) of the group (as indicated by the term ‘physical destruction’) can open the interpretation to methods other than the killing of its members or the prevention of births (Behrens, pp. 82–86).

There are openings in the definition of genocide that would cover Ishaq´s conduct, genocidal acts are not only killing, but may also consist of causing physical or mental harm (section 1(2) of the 2014 Act; article 2(b) of the Genocide Convention) and forcible transfer of children from one group to another (section 1(5) of the 2014 Act; article 2(e) of the Genocide Convention). As Fournet argues.

the  act  of   ‘forcibly  transferring  children  of   the  group  to  another  group’, which undoubtedly puts at risk the cultural identity of  the group, is generally considered as the last remainder of  ‘cultural genocide’ within the conventional ambit. (Behrens, p. 67)

The prosecution in the Ishaq case emphasized the grave suffering inflicted and forceful transfer of children from one group to another and which was accepted by the court as acts of genocide. Thus, it appears that one does not need to define acts as a cultural and social genocide per se to find that Ishaq’s conduct amounted to genocide. 

Modes of Liability

Since the district court finds that the defendant is a direct perpetrator there is no real problem with modes of liability. However, there has been a discussion in Sweden whether domestic court should apply the general rules of that domestic jurisdiction or the rules as applied by international criminal courts when it comes to modes of liability (see this article by Svensson and pages 926-938 in this article by Klamberg). The issue is more open for discussion when it comes to the pre-2014 legislation, while it is clearer when it comes to the 2014 International Crimes Act since the preparatory works (pp. 212-213) explain that courts should apply domestic rules. This is also what the district court does (pp. 111-112).

Part II of this post will examine how and to what extent does the judgment contribute to international criminal law jurisprudence regarding the crime of enslavement.